The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Wednesday, 18 January 2017

7 years old

This blog was 7 on 14th January and it has certainly been an interesting period of time with the last 12 months dominated by the European Union (EU) Referendum held on 23rd June 2016. In common with all human institutions, the EU is not perfect but it is founded on values of respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights - (Treaty on European Union). As history shows only too well, those are values that we lose sight of at our peril. The EU has the great merit of requiring governments to work together to achieve the aim of promoting peace and the well-being of a population of around 510 million people. My EU related posts are collected HERE and, in the near future, the Supreme Court of the UK will hand down its judgment in the Miller and Dos Santos litigation together with some associated references from Northern Ireland.

The Prime Minister's speech (17th January) at Lancaster House set out the key objectives of the government in the forthcoming negotiations with the EU. For a critique of the speech see EU Law Analysis - Brexit: the Prime Minister sets the wrong course. Parliament will get a vote on the "final deal" achieved by the negotiations but, as reported by the Evening Standard, there will NOT be a vote about whether to actually leave. In other words, rejection by Parliament of the deal would not result in the UK remaining in the EU.

This leads back to the question of whether an Article 50 notification may be unilaterally withdrawn by the State which gave the notice. As discussed in this previous post, this question has not been answered and the Brexit litigation proceeded on the assumption that notification cannot be withdrawn. If the correct legal position is that a notification may not be unilaterally withdrawn then any vote in Parliament would really be a vote about a deal that is, in reality, a fait accompli.

One of the ideas in the Prime Minister's speech is to repeal the European Communities Act 1972 and to convert the existing body of EU law (the 'acquis') into British law. This is the idea of the so-called "Great Repeal Bill" which will undoubtedly include extensive powers for Ministers to bring forward secondary legislation to alter matters. Barrister Schona Jolly sees the extensive use of "Henry VIII" clauses as inevitable with the associated minimal scrutiny in Parliament of the changes being made - Henry VIII clauses (1st November 2016).

An election has become necessary in Northern Ireland following the resignation of Mr Martin McGuinness (Deputy First Minister). The Independent looks at the views of Mr Colum Eastwood (Leader of the SDLP) that the Good Friday Agreement is under threat because of Theresa May’s
plans to enact a Hard Brexit - Independent 17th January The references from Northern Ireland to the Supreme Court were concerned with the possible impact of notification of leaving the EU on the devolution settlement given that EU membership was strongly woven into that settlement.

In the Brexit litigation, Mr James Eadie QC (for the government) made considerable play with a statement by Lord Bingham in Robinson
v Secretary of State for Northern Ireland [2002] UKHL 32 - (discussed at Brexit litigation in the Supreme Court - Government responses on the final day). Lord Bingham said: "Where constitutional arrangements retain scope for the
exercise of political judgment they permit a flexible response to differing and
unpredictable events in a way which the application of strict rules would
preclude." For a critical look at the government's use of the Robinson case during the Brexit litigation see the UK Constitutional Law Association Blog article* by Raj Desai- Miller and the Flexibility of the UK Constitution. The Supreme Court was essentially invited to adopt a new "flexible reading" method of interpreting constitutional Acts. It is an invitation which the court should decline. After all, it is for Parliament to make its intentions as clear as possible.

In a post on 17th January - What were the five techniques and why will they never work- Rightsinfo reminded us that it was the 39th anniversary of Ireland v UK when the Irish Government brought claims against the UK government, arguing that
the five interrogation methods the UK used during the ‘Troubles’
amounted to torture, and violated the human rights of those subjected to
this treatment. Although it’s 39 years old today, a new legal challenge from the
Irish Government will ask the European Court of Human Rights to revise
its judgment. The decision to reopen the case is based on a review of
thousands of documents, the Irish government considers shows that the
UK’s treatment of certain of those it detained during the Troubles
amounted to torture.

We can be certain that the next year will be every bit as interesting as the years before and so, with the sincerest of thanks to all readers, I hope to cover at least some of the legal stories as they arise.